U.S. Supreme Court
Supreme Court Strikes Down Law Banning Animal Crush Videos, Cites First Amendment
By Debra Cassens Weiss
Apr 20, 2010, 02:46 pm CDT
The U.S. Supreme Court has struck down a law that bars depictions of animal cruelty in an 8-1 opinion that characterizes the government’s defense of the video ban as “startling and dangerous.”
The majority opinion (PDF) by Chief Justice John G. Roberts Jr. stressed that the government had power to bar actual acts of animal cruelty, but not their portrayals, SCOTUSblog reports. Roberts said the law was overbroad and violated the First Amendment.
The ruling struck down a law intended to bar the sales of so-called crush videos in which women kill animals by crushing them with their bare feet or high-heeled shoes, the Associated Press reports.
Roberts’ majority opinion was critical of the government’s stance in the case.
Obscenity, defamation, incitement and speech integral to criminal conduct are among the few content restrictions permitted under the First Amendment, Roberts writes. “The government argues that ‘depictions of animal cruelty’ should be added to the list,” Roberts says. He quotes from a government brief that proposes a balancing test to determine whether a given category of speech enjoys First Amendment protection.
“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous,” Roberts says. “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”
The law at issue establishes a criminal penalty of up to five years in prison for anyone who creates or sells a depiction of animal cruelty for commercial gain. It defines animal cruelty as intentionally maiming, torturing, wounding or killing an animal if the conduct is illegal where the creation or sale takes place. An exception is allowed for depictions with serious educational, journalistic or artistic value.
According to Roberts, the statute is so broad that it could bar videos of hunting, which is illegal in the District of Columbia. The law reaches animal cruelty that is illegal in a single jurisdiction, allowing “each jurisdiction to export its laws to the rest of the country,” he writes.
Dissenting Justice Samuel A. Alito Jr. said the practical effect of the ruling is that it will spur more crush videos. The majority is “straining to find overbreadth” in the hunting example, Alito writes. Hunting depictions, he asserts, would fall outside the law’s ban.
“The animals used in crush videos are living creatures that experience excruciating pain,” Alito says. “The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct.”
Roberts Stevens had challenged the law after he was convicted for selling dog-fight videos. Alito saw no constitutional harm in barring such videos. “For these dogs, unlike the animals killed in crush videos, the suffering lasts for years rather than minutes,” he writes.